March Michael v Nicola Gouma and The Master of the High Court

### Preamble
1
HB 60/25
HCBC 1816/23
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MARCH MICHAEL

Versus

NICOLA GOUMA

And

THE MASTER OF THE HIGH COURT

IN THE HIGH COURT OF ZIMBABWE

NDUNA J

BULAWAYO 10 MARCH 2025

Judgment

Mr B Masamvu for applicant

Mr M Ndlovu for the first respondent

NDUNA J:	The parties have had battles in the Magistrates Court and herein at the High Court. In this case the applicant applies for the matter filed by the respondents and not thereafter prosecuted to finality dismissed due to want of prosecution. The respondent opposes the request. Both parties claim for costs on client and attorney scale.

However, before dealing with the facts in the matter it may be apposite at this point to have a brief overview of the applicable legal framework to place in context the issues which require adjudication. The leading authority on point is Cassimjee v Minister of Finance 2014 (3) SA 198 (SCA) in which the Supreme Court of Appeal in South Africa explained that ‘[a]n inordinate or unreasonable delay in prosecuting an action may constitute an abuse of process and warrant the dismissal of an action’. The court went on and held as follows at paras 11 and 12: -

There are no hard-and-fast rules as to the manner in which the discretion to dismiss an action for want of prosecution is to be exercised. But the following requirements have been recognised. First, there should be a delay in the prosecution of the action; second, the delay must be inexcusable; and, third, the defendant must be seriously prejudiced thereby. Ultimately, the enquiry will involve a close and careful examination of all the relevant circumstances, including the period of the delay, the reasons therefor and the prejudice, if any, caused to the defendant. There may be instances in which the delay is relatively slight but serious prejudice is caused to the defendant, and in other cases the delay may be inordinate but prejudice to the defendant is slight. The court should also have regard to the reasons, if any, for the defendant's inactivity and failure to avail itself of remedies which it might reasonably have been expected to use in order to bring the action expeditiously to trial.

An approach that commends itself is that postulated by Salmon LJ in the English case of Allen v Sir Alfred McAlpine & Sons Ltd; Bostik v Bermondsey and Southwark Group Hospital Management Committee; Sternberg v Hammond [1968] 1 All ER 543 (CA), where the following was stated at 561E– H:

“A defendant may apply to have an action dismissed for want of prosecution either (a) because of the plaintiff's failure to comply with the Rules of the Supreme Court or (b) under the court's inherent jurisdiction.

In my view it matters not whether the application comes under limb (a) or (b), the same principles apply. They are as follows: In order for such an application to succeed, the defendant must show:

(i) that there has been inordinate delay. It would be highly undesirable and indeed impossible to attempt to lay down a tariff – so many years or more on one side of the line and a lesser period on the other. What is or is not inordinate delay must depend on the facts of each particular case. These vary infinitely from case to case, but it should not be too difficult to recognise inordinate delay when it occurs.

(ii) that this inordinate delay is inexcusable. As a rule, until a credible excuse is made out, the natural inference would be that it is inexcusable.

(iii) that the defendants are likely to be seriously prejudiced by the delay. This may be prejudice at the trial of issues between themselves and the plaintiff, or between each other, or between themselves and the third parties. In addition to any inference that may properly be drawn from the delay itself; prejudice can sometimes be directly proved. As a rule, the longer the delay, the greater the likelihood of serious prejudice at the trial”.'

Rule 59 (15) of the High Court Rules, 2021 does not set out the factors to be considered by a judge or the court on an application for dismissal for want of prosecution. However, these were set out in the case of Guardforce Investments (Pvt) Ltd vs Ndlovu & Ors, SC24/16 at page 5 -6 as well on the same basis they were set by the South African Court of appeal and the Queen’s court. These are as follows: -

“The discretion to dismiss a matter for want of prosecution is a judicial discretion, to be exercised taking the following factors into consideration-

(a) the length of the delay and the explanation thereof;

(b) the prospects of success on the merits;

(c) the balance of convenience and the possible prejudice to the applicant caused by the other party’s failure to prosecute its case on time.

In this case the respondent gives the reasons for its delay in that it was held in the litigation by a number of actions involving the parties. It therefore lost sight of this action which it had filed in this court. Whilst that is an honest reason for the delay which has irked the applicant in this matter, it is not one reason which should be expected to be given by a party; especially at the High Court. Clearly there is no reasonable basis in the explanation; though it is an honest one. It cannot be allowed to prevail otherwise we will open a flood gates on such reasons.

The law has given a party time within which to act and a party who approaches the court must act in terms of the law.

Cost in the matter must be ordered as claimed by the applicant.

Accordingly, the application is allowed and the following are ordered;

The first respondent’s court application filed in this Honourable Court under case number HC(CAPP 229/23 is hereby dismissed with costs on attorney and client scale for want of prosecution.

The 1st Respondent pays the costs of this application on attorney and client scale.

Masamvu & DA Silva Gustavo Law Chambers, applicant’s legal practitioners

Mweli Ndlovu and Partners, respondent’s legal practitioners